Supreme Court Follies #1: Abortion

December 19, 2021

I use the word “follies” not in the fun sense, but as the plural of “folly.” The Supreme Court is plunging headlong toward great follies, as if calculated to shred public respect. Part of a broad Republican assault on the integrity of the institutions undergirding our democratic society and rule of law.

There’s been much talk of somehow reforming the Court, like adding justices or term limits. But forget it. No such change can get through Congress.

Several justices last summer toured around insisting the Court is not actually (to quote Justice Barrett) “a bunch of partisan hacks.” Methinks they did protest too much.

The local NPR station head has long said they’re “bought and paid for.” I used to hate that cynicism. Sure, you dance with the one who brung you; but Supreme Court judges have lifetime tenure and, once installed, are free to do the right thing.

Even Bush v. Gore I did not see as partisan. That election was, in effect, a tie; the Court had to resolve it; and with any different decision, it would not have been Gore elected, but chaos, a constitutional crisis. The judges acted wisely.

But their ambit to do the right thing can also allow serving personal agendas. And that’s what most Republican appointees are now doing. Chief Justice Roberts’s efforts to restrain this and save the Court from itself are failing. So it will either overturn Roe v. Wade or else otherwise gut it.

The religious right will celebrate their great triumph, decades in the making. How did they achieve this, in the teeth of clear majority public opinion? Undemocratically of course. They illegitimately blocked President Obama from appointing one Supreme Court judge (Merrick Garland) and then rammed through a third Trump appointment in the last days of his doomed administration. Both by an undemocratically structured Senate, with small rural states overrepresented.

And that’s no accident. Do you know why there are two Dakotas? Because Republicans who then controlled Congress divided the sparsely populated Dakota territory into two states just to give them added Senators and electoral votes. That picture is basically repeated throughout the west. And the electoral college gave us three justices appointed by a president who lost the popular vote!

I mentioned public opinion. Most Americans favor allowing at least early-term abortions. Of course the Supreme Court should be guided by the Constitution and law, rather than being a political body swayed by public opinion. Nevertheless, if they do defy it, as here, the judges better have good reasons.

I actually think Roe was bad law and bad politics when decided in 1973. Its critics, arguing before the Court in the current Mississippi case, had a point saying abortion was better left to state legislation than judicial fiat. The latter sparked decades of divisive nastiness, whereas other advanced nations resolved the issue calmly through democratic processes. (Mostly allowing abortion only until 15 weeks or so.)

But in America the toothpaste can’t be put back in the tube. Fact is, for better or worse, for nearly half a century Roe has been part of the fabric of American life. To reverse it now will be incredibly disruptive — indeed redoublingRoe’s politically inflammatory divisive effect. And the societal repercussions will be large. Studies suggest abortion had much to do with falling crime rates over decades, by averting some problem-ridden childhoods that make for potential lawbreakers. Now there will be more unwanted children. And more poverty and other social dysfunction. All imposing greater burdens on taxpayers.

When a fetus becomes a human being, with rights, is a complex debatable issue (though it takes religion to arrive at the extreme answer that it’s the moment of conception). Nevertheless, whatever else might be said of Roe, women able to control their reproductive lives made America a freer, better, more humane country. Part of dismantling an oppressive patriarchal culture that denied women human equality. Now this will actually be the first time the Supreme Court has ever taken away a basic right it previously enshrined.

Of course this reeks of politics and justices masking personal agendas under a guise of legalism. Giving an early fetus not only rights, but rights trumping those of its mother, is not grounded in any traditional legal paradigms, nor science-based, but instead is, again, merely religion-based.

The stance is labeled “pro-life.” But for all the ostensible moralism, there’s no genuine concern for human life. Indeed, fetishizing the unborn is downright weird given the utter disregard for the lives of children once they’ve made the mistake of being born. In states Republicans control, public policies tend to be the worst for child welfare.

And these so-called “pro-life” Republicans are killing many thousands with their Covidiocy — loopy conspiracy theories, anti-science nonsense, and they even actually obstruct public health measures like vaccinations and masking. This is literally, clinically, insane. And shows that Republicans are certainly not “pro-life.” If anything, they’re a death cult.

Their Public Enemy #1 is Doctor Fauci! With Senator Rand Paul in particular on the warpath. If you think Rand is a hero and Fauci a villain, not the reverse, then you are an asshole. But such utter lack of basic human judgment pervades today’s Republican party. Matt Gaetz? Taylor-Greene? McCarthy? Cruz? Gosar? Stefanik? Anyone with sense could see what they are. What Trump is.

Ironically one of their anti-vax slogans is “My body, my choice!” Of course, they don’t apply that to abortion, refusing women any such choice. While pro-choicers refuse to recognize any human life value in fetuses before birth. Alas those two extremist positions shape the debate, while the middle ground, supported by most Americans, gets outshouted.

The Supreme Court is also perverting our legal landscape by refusing to slap down the Texas abortion law vesting its enforcement in vigilante bounty-hunters, a blatant scheme to evade judicial review that could metastasize all over.

And then there are guns. So-called “pro-life” Republicans promote too an insane gun culture that also kills tens of thousands of Americans annually. That’s the subject of another looming Supreme Court folly, which I’ll address soon.

And will the Court, in January 2025, deem perfectly lawful the Republican coup, setting aside popular votes in several states and giving their electoral votes to Trump, returning him to office?

We’re headed off a cliff